Attempts Flashcards
What is the CA1961 definition of attempts, and where is it found?
S72 CA 1961
(1) Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What are the three necessary elements of an attempt offence?
- Intent (Mens Rea) to commit an offence.
- Act (Actus Reus) that they did, or omitted to do, something to achieve that end.
- Proximity - that their act or omission was sufficently close.
Can a person be convicted of an attempt to commit an offence that is defined solely in terms of recklessness or negligence?
No - it is a contradiction in terms to hold that someone attempted to bring about a consequence that was unintended.
How can intent be established for an attempted offence?
It can be inferred by the act itself (e.g. in possession of tools/disguises at the back door of a property pre-burglary) and/or proved by admissions or confessions.
What does R v Ring state regarding attempts?
(The accused was seen to hustle some women on a railway platform, and he put his hand in the pocket of one of them. The woman could not be located to give evidence, and accordingly there was no evidence that there was anything in her pocket to be stolen.)
In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent was to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.
What is the “all but” rule?
To prove an attempt, the accused must have done or omitted to do some act that is sufficiently proximate to the full offence - effectively, they must have started to commit the full offence and gone beyond the phase of mere preparation - the “all but” rule.
When looking at attempts, is each act by the offender viewed independently or cumulatively?
Cumulatively - independent acts looked at in isolation might be construed as preparatory, but they can take on a different context when viewed collectively and therefore amount to a criminal attempt.
What does R v Harpur state regarding attempts?
(The defendant was involved in a series of text messages with a woman in which he described, in explicit detail, sexual acts that he wanted to perform on the woman’s 4-year-old niece. He arranged for the girl to be brought to him for that purpose, however when he turned up at the agreed time and place he found that the girl did not in fact exist, and the arrangements were part of a ‘sting’ operation by Police. Harpur was charged with attempted sexual violation of the mythical girl, as well as numerous sexual offences relating to other children).
The court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops… The defendant’s conduct may be considered in it’s entirety. Considering how much remains to be done is always relevant, though not determinative.
How is proximity determined with an attempted offence?
The determination of proximity is an inconclusive one and will come down to the individual circumstances of each offence. Ask yourself: do the facts show mere preparation, or are the defendant’s acts or omissions immediately or sufficently proximate to the intended offence?
What two questions do Simester and Brookbanks (Principles of Criminal Law, 3rd, 224) suggest be asked in determining the point at which an act of mere preparation may become an attempt?
Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
Has the offender actually commenced execution, that is to say, has he taken a step in the actual crime itself?
How is proximity decided?
Proximity is a question of law, that is decided on the judge based on the assumption that the facts of the case are proved.
What are some elements of an offence that help determine proximity?
Fact, degree, common sense, the seriousness of the offence - these should be looked at in their totality and on a case-by-case basis.
Can a person be convicted of an attempt to commit an offence that is physically impossible to commit?
Yes - as per R v Ring, Higgins v Police and Police v Jay.
Can a person be convicted of an attempt to commit an offence that is legally impossible to commit? Example?
No - even if the suspect completes an act in the mistaken belief it is illegal, if it does not amount in law to an offence then they cannot be convicted of an attempt to commit it. Example - selling Datura believing it is illegal.
What does Higgins v Police state regarding physical impossibility?
Where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.
